The petitioner seeks the setting aside of impugned Order No,SO(CE-IV) 19-123/88 (26), dated 27-1- 1998 whereby respondent No, 2 has ordered that the respondent No, 5, ex-Principal, Government College for Women, Khanewal who retired from Government service on 9-12-1997 was re- employed on contract basis for a period of one year and posted as Principal (BS-19) Government College for Women, Khanewal against an existing vacancy with immediate effect and terms and conditions of her re-employment to be settled later on. The petitioner has assailed this order on three grounds, namely, the order being mala fide, as respondent No,5 had retired on 9-12-1997 after attaining the age of superannuation and the petitioner was made Incharge Principal of the said College on 9-12-1997 (afternoon) and was also granted the power of Drawing and Disbursing Officer with effect from 10-12-1997 to 9-6-1998 vide Order No,2/3- 5944/CE-3, dated 26-12-1997 and that an inquiry was pending against respondent No,5 on certain allegations of embezzlement and that there was violation of section 13 of the Punjab Civil Servants Act as before passing an order of re-employment, the order should have been made in the public interest and with the prior approval of the authority next above the authority appointing and that it was also violate of rule 19 of the Government Servants (Conduct) Rules, 1966, as the order was allegedly passed under political influence and that as the order of appointment of petitioner as Incharge Principal had been acted upon, the same could not be resided in view of the rule of locus penitential.
2. Notice was given to the respondents and the respondent No, 2 has filed comments in which it has been stated that there was a clear vacancy of Principal, Government College for Women, Khanewal against which respondent No, 5 was re-employed on contract basis after retirement and that the petitioner was not posted as In charge Principal against the said vacancy and was only given Drawing and Disbursing Officer powers by the Director of Education (C), Multan Division, Multan for smooth running of the College and that the appointment was made with the approval of the competent Authority.
3. The learned counsel for the respondents and learned A.A.-G. have taken the stand that this Court has got no jurisdiction as the dispute relates to the terms and conditions of a civil servant and such a dispute falls within exclusive jurisdiction of Service Tribunals and jurisdiction of all other Courts including High Court is expressly barred by Article 212(2) of the Constitution and that first of all the question of jurisdiction must be determined before proceeding any further in the matter.
4. I have given due consideration to the arguments of learned counsel for the parties and also the arguments addressed by learned A.A.-G.
5. First of all I take the question of jurisdiction. The jurisdiction of High Court is mentioned in Article 199 of the Constitution which reads as under:-- "199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law.--
(a) On the application of any aggrieved party, make an order:--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) On the application of any person, make and order:--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part H
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, or in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
(4) Where---
(a) An application is made to a High Court for an order under paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest (or State Property_ or of impeding the assessm ent or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order---
(i) would not have such effect as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
(4-A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken order done under any law which is specified in Part 1 of the First Schedule or relates to, or is connected with, (State property or) assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of (six months) following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier; (4-B)Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court (in merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.
(5) In this Article, unless the context otherwise requires,-- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means;
(a) in relation to an application effecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in which the application is made."
The bare reading of Article 199 of the Constitution makes it clear that an order to be made under said Article is: Firstly, Subject to the Constitution; Secondly, Discretionary; and Thirdly, The High Court while passing such order must be satisfied that no other adequate remedy is provided by law.
6. In the other words the Constitution is to be seen as a whole. If by any Article the power of the High Court is barred expressly or impliedly, the High Court should act accordingly. In the present case, the jurisdiction conferred by this Article 199 has been expressly barred by Article 212 of the Constitution which reads as under:-- "212. Administrative Courts and Tribunals.---(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisitions, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Courts or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the injunction of such Administrative Court to Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court), shall abate on such establishment); Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, (Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
A bare reading of this Article also clearly shows that the power conferred on the appropriate legislature to provide for the establishment of an Administrative Tribunal is "notwithstanding anything hereinbefore contained" and such a Tribunal is to exercise exclusive jurisdiction in respect of matters, among others, the matters relating to the terms and conditions of persons who are or have been in the Service of Pakistan; including disciplinary matters.
7. The re-employment of a civil servant after his retirement is mentioned in Chapter II in section 13 of the Punjab Civil Servants Act, 1974. Chapter II relates to the terms and conditions of service.
Hence, the Service Tribunal has the exclusive jurisdiction in such a matter. Therefore, the objection as to jurisdiction is legally sound and factually correct.
8. The learned counsel for the petitioner has next contended that the Constitutional jurisdiction is still available as the action of the respondents is without jurisdiction and mala fide as the order has been signed by the Education Secretary and not by the Chief Minister and that it has been passed under political influence and knowing fully well that an inquiry of embezzlement was pending against respondent No,5. The Service Tribunal is also competent to examine these points as was held in the case of Muhammad Hashim Khan v. Province of Baluchistan (PLD 1976 Quetta 59) which was approved by the Hon'ble Supreme Court in the case of Iqbal Ahmad Khurram v. Government of Pakistan and others (PLD 1980 SC 153).
9. For the above reasons the present writ petition is dismissed for want of jurisdiction.